Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 1358 (BOM)

Shamrao s/o Punyaji More v. State of Maharashtra

2011-11-09

P.V.HARDAS, PRASANNA B.VARALE

body2011
JUDGMENT (Per P. V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life, by the 1st Ad hoc Additional Sessions Judge, Wardha, by judgment and order dated 2842005, in Sessions Trial No.127/2003, by this appeal questions the correctness of his conviction and sentence. 2. Since the appeal was forwarded through Jail, we had appointed Shri Shriniwas Deshpande, learned Counsel, to represent the appellant in this appeal and who has very ably argued the appeal on behalf of the appellant. 3. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.2 Suresh Dhone, Head Constable, who was attached to the Police Station Kharangana, received papers consisting of statement of injured Shakuntala and accordingly registered an offence vide Crime No.49/2003. The printed First Information Report is at Exh.20. The case diary of the said crime thereafter came to be entrusted to P.W.6Suresh Bhoyar for investigation. Accordingly, P.W.6Suresh Bhoyar, P.S.I., who was also attached to Police Station Kharangana, proceeded to the scene of the offence and drew the scene of the offence panchanama at Exh.16 in the presence of P.W.1Haridas. From the scene of the offence certain articles namely, a Can containing kerosene oil, a match box and a partly burnt Dhoti came to be seized vide seizure memo at Exh.17 in the presence of P.W.1Haridas. Statements of witnesses came to be recorded. Meanwhile, it appears that P.W.4Vinod Kirolkar, who had received the requisition at Exh.26, proceeded to the General Hospital, Wardha for recording the statement of injured Shakuntala. He contacted the Medical Officer on the duty and on the Medical Officer certifying that Shakuntala was in a fit condition to give her statement, recorded the dying declaration of Shakuntala at Exh.25. The Medical Officer namely, P.W.7Dr. Mohan Sure thereafter endorsed on the dying declaration that Shakuntala had been conscious during recording of the dying declaration. Further to the completion of the investigation, the chargesheet against the appellant came to be filed. 4. On committal of the case to the Court of Session, the trial Court vide Exh.9 framed charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. 5. The prosecution in support of its case examined seven witnesses. 4. On committal of the case to the Court of Session, the trial Court vide Exh.9 framed charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. 5. The prosecution in support of its case examined seven witnesses. The trial Court accepted the evidence of P.W.4Vinod Kirolkar in respect of recording of the dying declaration at Exh.25 as well as the evidence of P.W.7Dr. Mohan Sure, who had opined that Shakuntala was in a fit condition to give her statement, convicted and sentenced the appellant as aforestated. The trial Court further found that the report of the Chemical Analyser at Exh.33 reveals that Dhoti, which was seized from the scene of the offence and which was partly burnt, was found stains with kerosene oil. 6. Before we advert to the submissions advanced before us by Shri Shriniwas Deshpande, learned Counsel for the appellant and Shri T.A. Mirza, learned Addl. P. P. for the respondent/State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.4Vinod Kirolkar states that he had received the requisition at Exh.26 for recording the dying declaration of Shakuntala. Upon receipt of the said memorandum, he had accordingly proceeded to the General Hospital at Wardha. He contacted the Medical Officer P.W.7Mohan Sure and on the Medical Officer certifying that injured Shakuntala was in a fit condition to give her statement recorded the dying declaration of Shakuntala at Exh.25. In cross-examination, on behalf of the appellant, he has admitted that the dying declaration does not state the time of commencing of recording of the dying declaration as well as conclusion of the dying declaration. He has denied the suggestion that thumb impression on the dying declaration was not of Shakuntala. He has further denied the suggestion that the Medical Officer had not examined Shakuntala. He has admitted in cross-examination that the wounds i.e. burns were bandaged and Shakuntala had sustained severe burns. 7. P.W.7Dr. Mohan Sure, who was on duty in the Casualty Department, states that at about 1.45 p.m. the Executive Magistrate P.W.4Vinod Kirolkar met him and requested him to examine Shakuntala. He has then stated that he examined Shakuntala and noted that she was in a fit condition to give her statement and accordingly made the endorsement at Exh.42. 7. P.W.7Dr. Mohan Sure, who was on duty in the Casualty Department, states that at about 1.45 p.m. the Executive Magistrate P.W.4Vinod Kirolkar met him and requested him to examine Shakuntala. He has then stated that he examined Shakuntala and noted that she was in a fit condition to give her statement and accordingly made the endorsement at Exh.42. The Medical Officer thereafter recorded the statement of Shakuntala at Exh.25 and after recording the same, P.W.7 Dr. Mohan Sure examined Shakuntala again and endorsed that she was conscious throughout the recording of the statement. In cross-examination, he has admitted that initially the Executive Magistrate had met him in the Casualty Department. He has further admitted that it takes about five minutes to go from the Casualty Department to the Ward. He has admitted that there was discussion for 5 to 10 minutes between him and the Executive Magistrate. He has then admitted in the cross-examination that he had examined blood pressure of Shakuntala, but had not noted the same in the dying declaration. He has admitted that the endorsement is given in the printed proforma. 8. Upon consideration of the evidence of these two witnesses namely, P.W.4Vinod Kirolkar and P.W.7Dr. Mohan Sure, according to us, the prosecution has been able to establish beyond reasonable doubt that the dying declaration of Shakuntala had been recorded at Exh.25 and during recording of the dying declaration Shakuntala was conscious and was in a fit condition to give her statement. The dying declaration, according to us, establishes the offence beyond reasonable doubt. The Chemical Analyzer Report at Exh.33 corroborates the version of Shakuntala that the appellant had poured kerosene on her while she was proceeding inside the house after refusing to pay money to the appellant for consuming liquor. The Dhoti, which is at Article 3 in the Chemical Analyzer Report at Exh.33, shows that it tests positive for presence of kerosene oil. The Dhoti was partly burnt and it appears that the appellant had also sustained burn injuries. The dying declaration does not refer to the appellant attempting to extinguish the flames and thereby sustaining the burn injuries. The appellant has not offered any explanation in his statement under Section 313 of the Criminal Procedure Code in respect of finding of kerosene on his Dhoti and the appellant sustaining the burns. The dying declaration does not refer to the appellant attempting to extinguish the flames and thereby sustaining the burn injuries. The appellant has not offered any explanation in his statement under Section 313 of the Criminal Procedure Code in respect of finding of kerosene on his Dhoti and the appellant sustaining the burns. In such circumstances, according to us, the burns had been sustained by the appellant in the process of setting Shakuntala ablaze. 9. We have given our anxious consideration to the submissions advanced before us by the learned Counsel for the parties and upon examining the evidence of the prosecution witnesses, according to us, the prosecution has proved the offence against the appellant beyond reasonable doubt. The conviction and sentence needs no interference. The appeal being thus sans merit, therefore, dismissed confirming the conviction and sentence. We quantify the fees payable to Shri Shriniwas Deshpande, learned Counsel appointed for the appellant, at Rs.5000/. Appeal dismissed.